A very busy work schedule (not sure when the “semi” part of semi-retired will kick back in) has kept your correspondent from updating this space for a few weeks. Here is what’s happened while I’ve been occupied.
Decisions announced April 12, 2022
Tate Morris v. George Mason University is an administrative law case addressing the dismissal of a state employee who was terminated due to his failure to follow workplace safety protocols related to the COVID-19 pandemic. Now if you are hoping for a riveting tale of deeply held political beliefs challenging the power of the state to enforce rigid protocols based on it police powers, you are in for disappointment. Morris’ transgression was not a refusal to get vaccinated, wear a mask, or social distance. He simply came to work while suffering from clear symptoms of COVID despite requirements that anyone suffering from potential COVID not report to work until they had a negative test. Morris did get tested after being told he was required to but returned to work before the result was available and, as you probably guessed, that result was positive.
Morris was terminated for not following the required procedure. He challenged this decision administratively and, when the hearing officer upheld the termination, as did the director of the Office of Employment Dispute Resolution. Morris the appealed to the circuit court, which also affirmed. The Court of Appeals now reviews that decision and Morris’ argument that he has been denied due process at each stage of the dispute resolution system. The problem is, of course, that the record shows Morris got all the process under the state employee grievance procedures that he was due. This is simply a case of an employee not following a straightforward policy (actually, the hearing officer found four violations of policy), which had been put in place for workplace safety, and being dismissed for that transgression. The fact that the policy had to do with the requirements for returning to work during the latter part of the COVID pandemic was not relevant.
I am always willing to admit when I’ve made an error (well, perhaps not in all aspects of my life, but always in this space dear reader). Back on March 8, 2022 in summarizing the opinion in Paul H. Lundmark v. Commonwealth, I predicted the Lundmark would be satisfied with getting a delayed appeal rather than pursuing a review of the 2-1 decision finding that a procedural error committed by his counsel barred his appeal. I made this prediction even though the same panel of the Court that heard Lundmark’s appeal had previously issued an opinion with remarkably similar facts, but found that the appeal was not barred. Well, it seems I was wrong about Lundmark’s passivity. The other decision of the Court announced April 12, 2022 was an order granting Lundmark a rehearing en banc.
Decisions Announced April 19, 2022
Last week the court issued two published opinions and one published order, the latter granting a petition for a writ of actual innocence. As a grant WAI is pretty rare, let’s start with that case. Michael Haas v. Commonwealth of Virginia is, as are all WAIs in the Court of Appeals, based on claim not founded on biological evidence (DNA), which go to the Supreme Court. That means that there must be some new evidence of a testimonial or non-biological forensic nature or, as is in fact the case here, both. The facts of the underlying conviction are very disturbing as they involve allegations of sexual abuse by Haas of his two pre-teen sons in 1992. Although the allegations arose during a troubled marriage, the evidence, including medical testimony was very damning, and Hass was convicted and sentenced to life imprisonment.
Throughout his trial, appeals and habeas proceedings, Haas maintained his innocence. In 2010, Haas filed his first petition for a writ of actual innocence. The two boys, and their sister, now adults, recanted their testimony and stated that their mother had told them that their father would simply “get treatment for his temper and drinking” and that the family could then be reunited, never mentioning the fact that he would be imprisoned. Haas also offered new medical evidence to refute the evidence presented at trial. Haas’ petition was denied.
Haas was released on parole in 2017, but was required to register as a sex offender.
Effective July 1, 2020, the WRI statute was amended to permit the filing of multiple petitions and changed the standard for finding that a recantation was true from clear and convincing to a preponderance of the evidence. Haas filed his second petition for a writ of actual innocence which was based on additional medical evidence, not available in the 2010 proceeding, that gave further weight to the assertion that the original evidence of the alleged abuse was not sound. The children again filed affidavits recanting their testimony from the trial and reasserting that they had not been abused by their father.
Following a evidentiary hearing in the circuit court where the evidence of the children’s recantations and the new medical evidence was found to be credible, the Commonwealth conceded that Haas had been wrongfully convicted. Although there was a change in administration between this concession and the hearing before the Court of Appeals, the new Attorney General did not seek to withdraw it. The 37 page order granting the petition will undoubtedly serve as a model for the application of the new law of WRI.
John Thomas Keene v. Commonwealth of Virginia is an appeal of a denial of pre-trial bond. Typically, such appeals do not lead to a published opinion because the issue of pre-trial bond is a matter of the trial court’s discretion and difficulty to get overturned. But, as many of you will know, the law regarding pre-trial bond has recently been changed to eliminate the presumption against bond in most (but not all) felony cases. The law does not so much say that bond is presumed to be available as it specifically identifies those instances in which the presumption against bond still applies. Nonetheless, the Court of Appeals presumes that the new statute does favor bond in felony cases.
However, the Court also says that the decision is still committed to the trial court’s discretion and, more specifically, to its findings on eight statutory factors to be considered when denying bond — a decision which must be set forth in writing giving the reasons for the court’s denial, another innovation of the statutory change. The trial court in this case set forth its reasons in a two-page opinion letter and the Court of Appeals finds that the court clearly understood that it was applying a new standard, but found that Keene was likely to be a danger to the public and thus, bond was not appropriate. The Court of Appeals finds that this decision is supported by the evidence and therefore does not constitute an abuse of the trial court’s direction.
Published opinions upholding denial of bond are rare, but only less so are opinion reversing criminal convictions for insufficient evidence, but that is exactly what the final decision of the Court to be addressed in this post does. Aaron Jacob Goldman v. Commonwealth of Virginia is an appeal of a grand larceny conviction. The property that was taken were tools that were stored on a job-site where Goldman was employed. The principal evidence against Goldman was a security video that shows an individual taking tools from the storage container, and, here’s the twist in this commonly told story, Goldman admits that he is the person in the video. That’s right, Goldman agrees that the person seen taking tools was indeed him. Case closed, right?
Well, no. Because while Goldman admitted that the video showed him taking tools from the storage box, the witness who authenticated the video said that it was dated January 31, 2019, whereas the witness who was called to establish the value of the tools said they were purchased in September or October of 2019 and went missing on or after October 31, 2019. Now that’s a problem, as it suggests that whatever Goldman was seen taking, if it was in January 2019, he certainly wasn’t taking tools that were not acquired until nine months later. Goldman also noted that he was in fact authorized to use the tools that subsequently went missing, thus, even if the tape showed him removing tools from the box on October 31, 2019, that evidence was insufficient to prove that he stole the tools because there was no evidence that he did not return them.
Naturally, Goldman moved to strike at the end of the Commonwealth’s evidence. The trial court then opined that there was “some confusion” about the date of the video, but that a “sufficient foundation” had been laid to establish that the taking occurred on October 31, 2019. The court said it would put the matter down for sentencing but “may end up finding him not guilty if the Court is not satisfied there’s sufficient reference to the date, but I’m going to need to review the transcript for that.”
At the sentencing, the trial court stated that it had concluded the proponent of the video had simply misspoke, and that the date he had reviewed the video was January 31, 2020. Conceding that there was no evidence as to the date the video was taken, the court concluded that the Commonwealth was not required to establish the date the video was taken. The court also didn’t really address the issue of whether proof that Goldman removed tools from a box which he was permitted to do and that the tools ultimately went missing was sufficient to establish that he must have taken the tools.
Before getting to the Court of Appeals basis for reversing the decision, let me point out what I view to be the real problem with this case, and its got nothing to do with what the evidence did not did not prove. It has to do with the fact that Goldman was charged under Code § 18.2-95, which is the “simple larceny” statute. But if Goldman was authorized to take the tools from the storage box for his work, he could not have committed simply larceny. What he should have been charged with was “embezzling” the tools. Now most people assume embezzlement involves only the taking of money, or something like money such as a check. But embezzlement includes any property that comes into someone’s possession “by virtue of his office, trust, or employment” and the tools clearly fall into that category. It’s true that embezzlement is “deemed” to be larceny and is punished the same way, but it requires an entirely different method of proof. Apparently, however, Goldman and his counsel were content with the charge of simply larceny (perhaps because they intended to argue that because Goldman was authorized to take the tools, his doing so was not contrary to the rights of the true owner), and then the Commonwealth handed them the gift of extremely muddled evidence.
The Court of Appeals first discards the Commonwealth’s efforts to rehabilitate its evidence by noting, for example, that the file name of the video included the October 31, 2019 date (actually it included “20191031”), but the Court notes that the filename was not offered into evidence, nor was it verified that the filename established the date the video was taken. The Court further notes that it was the Commonwealth that elicited that the date of the video was January 31, 2019 and that no reference to the video having been made on another other date was mentioned prior to the close of the evidence. Likewise, the supposition that the witness simply misspoke and meant to say that he review the video on January 31, 2020, the Court notes that this supposition is not supported by the witness’ testimony, has he admitted that he was unsure of the date he reviewed the video, but specifically testified that the date the video was taken was January 31, 2019. However, reasonable it might be to assume that the witness was confused, the Commonwealth is stuck with the testimony it elicited, not the testimony it wanted to elicit.
Without going into the analysis given above about embezzlement vs. simple larceny, the Court of Appeals does give Goldman a cherry on top by noting that the video only showed Goldman taking some tools from the storage box, which he was allowed to do. The video did not show Goldman taking the specific tools alleged to have been stolen not was the video sufficient to establish that Goldman was taking the tools with the intent not to return them. While this analysis was not necessary to overturn the conviction, it was probably added to point out that even though was can all agree that the witness was just mixed up about his dates (and the Commonwealth’s questions certainly didn’t help), the evidence was still insufficient. A cynical man would wish Mr. Goldman good use of the tools he didn’t steal . . . but your correspondent is trying to be less cynical.